Exhibit 10.5
AMENDED AND RESTATED LOAN AGREEMENT
Dated as of June 26, 2003
among
SUNTRUST EQUITY FUNDING, LLC,
as Lessor and Borrower,
the financial institutions party hereto,
as Lenders
and
SUNTRUST BANK,
as Agent
TABLE OF CONTENTS
Page
SECTION 1 DEFINITIONS; INTERPRETATION............................................................... 1
SECTION 2 AMOUNT AND TERMS OF COMMITMENTS; REPAYMENT AND PREPAYMENT OF LOANS........................ 1
SECTION 2.1 Commitment..................................................................... 1
SECTION 2.2 Note........................................................................... 2
SECTION 2.3 Scheduled Principal Repayment.................................................. 2
SECTION 2.4 Interest....................................................................... 2
SECTION 2.5 Allocation of Loans to Leased Properties....................................... 3
SECTION 2.6 Prepayment..................................................................... 3
SECTION 3 RECEIPT, DISTRIBUTION AND APPLICATION OF CERTAIN PAYMENTS IN RESPECT OF LEASE AND LEASED
PROPERTY.................................................................................. 3
SECTION 4 THE LESSOR; EXERCISE OF REMEDIES UNDER LEASE.............................................. 3
SECTION 4.1 Covenant of Lessor............................................................. 3
SECTION 4.2 Lessor Obligations Nonrecourse; Payment from Certain Lease Obligations and
Certain Proceeds of Leased Property Only....................................... 4
SECTION 4.3 Exercise of Remedies Under the Lease........................................... 4
SECTION 5 LOAN EVENTS OF DEFAULT; REMEDIES.......................................................... 5
SECTION 5.1 Loan Events of Default......................................................... 5
SECTION 5.2 Remedies....................................................................... 6
SECTION 6 THE AGENT................................................................................. 7
SECTION 6.1 Appointment.................................................................... 7
SECTION 6.2 Delegation of Duties........................................................... 7
SECTION 6.3 Exculpatory Provisions......................................................... 7
SECTION 6.4 Reliance by Agent.............................................................. 7
SECTION 6.5 Notice of Default.............................................................. 8
SECTION 6.6 Non-Reliance on Agent and Other Lenders........................................ 8
SECTION 6.7 Indemnification................................................................ 9
SECTION 6.8 Agent in Its Individual Capacity............................................... 9
SECTION 6.9 Successor Agent................................................................ 9
SECTION 7 MISCELLANEOUS............................................................................. 10
SECTION 7.1 Documentary Conventions........................................................ 10
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SECTION 7.2 No Waiver; Cumulative Remedies................................................... 10
SECTION 7.3 Successors and Assigns........................................................... 10
SECTION 7.4 Survival and Termination of Agreement............................................ 10
EXHIBITS
EXHIBIT A Form of Note
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THIS AMENDED AND RESTATED LOAN AGREEMENT (as it may be further amended
or modified from time to time in accordance with the provisions hereof, this
"Loan Agreement") dated as of June 26, 2003, but effective as of the Effective
Date, is among SUNTRUST EQUITY FUNDING, LLC, a Delaware limited liability
company, as lessor and borrower (the "Lessor"); the financial institutions which
are, or may, as permitted by Section 6.2(b) of the Master Agreement, from time
to time become, parties hereto as lenders (the "Lenders") and SUNTRUST BANK, a
Georgia banking corporation, as agent for the Lenders (in such capacity, the
"Agent").
PRELIMINARY STATEMENT
1. Atlantic Financial Group, Ltd. ("AFG"), the Lenders and the
Agent were parties to that certain Loan Agreement, dated as of August 29, 2001
(the "Original Loan Agreement"). AFG transferred its interests in the Leased
Properties and all of its rights and obligations under the Operative Documents
to the AFG Transferee, and the AFG Transferee subsequently merged with the
Lessor with the Lessor as the survivor of such merger. The parties hereto desire
to amend and restate the original Loan Agreement in its entirety.
In accordance with the terms and provisions of the Master Agreement,
the Lease, this Loan Agreement and the other Operative Documents, (i) the Lessor
contemplates acquiring the Leased Properties and leasing the Leased Properties
to the Lessees, (ii) ChoicePoint as Construction Agent for the Lessor, wishes,
in certain instances, to construct Buildings on the Land for the Lessor and,
when completed, to lease the Buildings, or to cause the Buildings to be leased,
from the Lessor as part of the Leased Properties under the Lease, (iii)
ChoicePoint wishes to obtain, and the Lessor is willing to provide, funding for
the acquisition of the Land and any Buildings thereon and, in certain instances,
the construction of the Buildings, and (iv) the Lessor wishes to obtain, and the
Lenders are willing to provide, financing of a portion of the funding for the
acquisition of the Land and any Buildings thereon and, if applicable, the
construction of the Buildings.
In consideration of the foregoing and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
SECTION 1. DEFINITIONS; INTERPRETATION
Unless the context shall otherwise require, capitalized terms used and
not defined herein shall have the meanings assigned thereto in Appendix A to the
Amended and Restated Master Agreement dated as of June 26, 2003 (as amended, or
supplemented or otherwise modified from time to time, the "Master Agreement"),
among ChoicePoint Inc., as Guarantor, and certain Subsidiaries of ChoicePoint
Inc. that may become party thereto, as Lessees, the Lessor, the Lenders and the
Agent; and the rules of interpretation set forth in such Appendix A shall apply
to this Loan Agreement.
SECTION 2 AMOUNT AND TERMS OF COMMITMENTS; REPAYMENT AND PREPAYMENT OF
LOANS
SECTION 2.1 Commitment. (a) Subject to the terms and conditions hereof
and of the Master Agreement, each Lender agrees to make term loans to the Lessor
("Loans") from time to
time during the period from and including the Initial Closing Date through the
Funding Termination Date, on each Closing Date and on each subsequent Funding
Date, in the amounts required under Section 2.2 of the Master Agreement. Each
such Loan shall consist of an A Loan in the amount of such Lender's Pro Rata
Share of the Recourse Deficiency Amount for the related Leased Property and a B
Loan in the amount of such Lender's Pro Rata Share of the remaining principal
amount of the Loan related to such Leased Property.
SECTION 2.2 Note. The Loans made by each Lender to the Lessor shall be
evidenced by a note of the Lessor (the "Note"), substantially in the form of
Exhibit A with appropriate insertions, duly executed by the Lessor and payable
to the order of the Agent, on behalf of the Lenders, and in a principal amount
equal to the aggregate Commitments of the Lenders (or, if less, the aggregate
unpaid principal amount of all Loans made by the Lenders to the Lessor). The
Note shall be dated the date hereof and delivered to the Agent in accordance
with Section 3.2 of the Master Agreement. The Agent is hereby authorized to
record the date and amount of each Loan made by each Lender to the Lessor on the
Note or in its records, and each Lender is hereby authorized to record the date
and amount of each Loan made by such Lender to the Lessor in its records, but
the failure by the Agent or any Lender to so record such Loan shall not affect
or impair any obligations with respect thereto. The Note shall (i) be stated to
mature no later than the final Lease Termination Date and (ii) bear interest
from the date a Loan is made on the unpaid principal amount thereof from time to
time outstanding at the applicable interest rate per annum determined as
provided in, and payable as specified in, Section 2.4. Upon the occurrence of an
Event of Default under clause (f) of Article XII of the Lease, or upon
Acceleration as described in Section 4.3(b) hereof, the Note shall automatically
become due and payable in full.
SECTION 2.3 Scheduled Principal Repayment. On the Lease Termination
Date, the Lessor shall pay the aggregate unpaid principal amount of all Loans as
of such date.
SECTION 2.4 Interest. (a) Each Loan related to a LIBOR Advance shall
bear interest during each Rent Period at a rate equal to the sum of (i) the
LIBOR for such Rent Period, computed using the actual number of days elapsed and
a 360 day year, plus (ii) the Applicable Margin per annum. Each Loan related to
a Base Rate Advance shall bear interest at a rate equal to the sum of (i) the
Base Rate in effect from time to time, computed using the actual number of days
elapsed and a 360 day year, plus (ii) the Applicable Margin per annum.
(b) If all or a portion of the principal amount of or interest on
the Loans shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise), such overdue amount shall, without limiting the
rights of the Lenders under Section 5, bear interest at the Overdue Rate, in
each case from the date of nonpayment until paid in full (after as well as
before judgment).
(c) Interest accruing on each Loan with respect to any Leased
Property during the Construction Term of such Leased Property shall, subject to
the limitations set forth in Section 2.3(c) of the Master Agreement, be added to
the principal amount of such Loan from time to time. Following the date each
Loan is made (or in the case of Loans with respect to a Construction Land
Interest, the Construction Term Expiration Date), interest on such Loan shall be
payable in arrears on each Payment Date with respect thereto.
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(d) Any change in the interest rate on the Loans resulting from a
change in the Base Rate shall become effective as of the opening of business on
the day on which such Base Rate changes as provided in the definition thereof.
SECTION 2.5 Allocation of Loans to Leased Properties. Pursuant to each
Funding Request, each Loan shall be allocated to the Leased Property, the cost
of acquisition or construction of which the proceeds of such Loan are used to
pay. For purposes of the Operative Documents, the "related Loans" with respect
to any Leased Property or Loans "related to" any Leased Property shall mean
those Loans allocated to such Leased Property as set forth in the foregoing
sentence.
SECTION 2.6 Prepayment. Except in conjunction with a payment by a
Lessee or the Construction Agent of the Lease Balance, a Construction Failure
Payment or a Leased Property Balance pursuant to the terms of the Lease or the
Construction Agency Agreement, the Lessor shall have no right to prepay the
Loans.
SECTION 3 RECEIPT, DISTRIBUTION AND APPLICATION OF CERTAIN PAYMENTS IN
RESPECT OF LEASE AND LEASED PROPERTY.
Payments of Rent, other payments made pursuant to the Operative
Documents and proceeds of the Leased Properties shall be distributed as set
forth in Section 6 of the Master Agreement.
SECTION 4 THE LESSOR; EXERCISE OF REMEDIES UNDER LEASE
SECTION 4.1 Covenant of Lessor. So long as any Lender's Commitment
remains in effect, any Loan remains outstanding and unpaid or any other amount
is owing to any Lender with respect to its Funding Party Balances, subject to
Section 4.2, the Lessor will promptly pay all amounts payable by it under this
Loan Agreement and the Notes issued by it in accordance with the terms hereof
and thereof and shall duly perform each of its obligations under this Loan
Agreement and the Notes. The Lessor agrees to provide to the Agent a copy of
each estoppel certificate that the Lessor proposes to deliver pursuant to
Section 17.13 of the Lease at least five (5) days prior to such delivery and to
make any corrections thereto reasonably requested by the Agent prior to such
delivery. The Lessor shall keep each Leased Property owned by it free and clear
of all Lessor Liens. The Lessor shall not reject any sale of any Leased Property
pursuant to Section 14.6 of the Lease unless all of the related Loans have been
paid in full or the Lenders consent to such rejection. In the event that the
Lenders reject any sale of any Leased Property pursuant to Section 14.6 of the
Lease, the Lessor agrees to take such action as the Required Funding Parties
reasonably request to effect a sale or other disposition of such Leased
Property, provided that the Lessor shall not be required to expend its own funds
in connection with such sale or disposition. In the event that the Construction
Agent returns any Leased Property to the Lessor pursuant to Section 5.3(a) of
the Construction Agency Agreement, unless all of the related Loans are paid in
full, the Lessor agrees to take such action as the Required Funding Parties
reasonably request to complete the Construction, or to effect a sale or other
disposition, of such Leased Property, provided that the Lessor shall not be
required to expend its own funds in connection therewith. During the
Construction Term for each Leased Property, the Lessor agrees to assume
liability for, and to indemnify, protect, defend, save and hold harmless the
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Agent, each Lender and each of their respective Affiliates, successors, assigns,
employees, officers and directors, on an After-Tax Basis, from and against, any
and all Claims that may be imposed on, incurred by or asserted or threatened to
be asserted against the Agent or any Lender, in any way relating to or arising
out of the circumstances described in Section 7.1 or 7.4 of the Master
Agreement, provided that the Lessor shall only be obligated to make a payment
pursuant to this sentence to the extent that the Lessor receives payment from
the Construction Agent or any other Person with respect to such Claim.
SECTION 4.2 Lessor Obligations Nonrecourse; Payment from Certain Lease
Obligations and Certain Proceeds of Leased Property Only. All payments to be
made by the Lessor in respect of the Loans, the Note and this Loan Agreement
shall be made only from certain payments received under the Lease, the Guaranty
Agreement, and the Construction Agency Agreement and certain proceeds of the
Leased Properties and only to the extent that the Lessor or the Agent shall have
received sufficient payments from such sources to make payments in respect of
the Loans in accordance with Section 3. Each Lender agrees that it will look
solely to such sources of payments to the extent available for distribution to
such Lender as herein provided and that neither the Lessor nor the Agent is or
shall be personally liable to any Lender for any amount payable hereunder or
under the Note. Nothing in this Loan Agreement, the Note or any other Operative
Document shall be construed as creating any liability (other than for willful
misconduct or gross negligence) of the Lessor individually to pay any sum or to
perform any covenant, either express or implied, in this Loan Agreement, the
Notes or any other Operative Documents (all such liability, if any, being
expressly waived by each Lender) and that each Lender, on behalf of itself and
its successors and assigns, agrees in the case of any liability of the Lessor
hereunder or thereunder (except for such liability attributable to its willful
misconduct or gross negligence) that it will look solely to those certain
payments received under the Lease, the Guaranty Agreement and the Construction
Agency Agreement and those certain proceeds of the Leased Properties, provided,
however, that the Lessor in its individual capacity shall in any event be liable
with respect to (i) the removal of Lessor's Liens or involving its gross
negligence or willful misconduct or (ii) failure to turn over payments the
Lessor has received in accordance with Section 3; and provided further that the
foregoing exculpation of the Lessor shall not be deemed to be exculpations of
the Guarantor, any Lessee or any other Person.
SECTION 4.3 Exercise of Remedies Under the Lease.
(a) Event of Default. With respect to any Potential Event of
Default as to which notice thereof by the Lessor to ChoicePoint or a Lessee is a
requirement to cause such Potential Event of Default to become an Event of
Default, the Lessor agrees to give such notice to ChoicePoint or such Lessee
promptly upon receipt of a written request by any Lender or the Agent. The
Lessor shall not, without the prior written consent of the Required Funding
Parties, waive any Event of Default.
(b) Acceleration of Lease Balance. When an Event of Default or a
Construction Failure Event exists, the Lessor shall exercise remedies under
Article XIII of the Lease or Section 5 of the Construction Agency Agreement, as
the case may be, as directed by the Required Funding Parties, including, if so
directed, demanding payment in full of the Lease Balance by the Lessees (the
"Acceleration"). The Lessor shall consult with the Lenders regarding actions to
be taken in response to such Event of Default or a Construction Failure
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Event. The Lessor (1) shall not, without the prior written consent of the
Required Funding Parties and (2) shall (subject to the provisions of this
Section), if so directed by the Required Funding Parties, do any of the
following: commence eviction or foreclosure proceedings, or file a lawsuit
against any Lessee under the Lease, or sell the Leased Properties, or exercise
other remedies against the Lessees or the Guarantor under the Operative
Documents in respect of such Event of Default or a Construction Failure Event;
provided, however, that any payments received by the Lessor shall be distributed
in accordance with Section 6 of the Master Agreement. Notwithstanding any such
consent, direction or approval by the Required Funding Parties of any such
action or omission, the Lessor shall not have any obligation to follow such
direction if the same would, in the Lessor's reasonable judgment, require the
Lessor to expend its own funds or expose the Lessor to expense, unless the
Lenders provide to the Lessor an indemnity, in form and substance reasonably
acceptable to the Lessor, for such liability, loss or damage or unless and until
the Lenders advance to the Lessor an amount which is sufficient, in the Lessor's
reasonable judgment, to cover such liability, expense, loss or damage (excluding
the Lessor's pro rata share thereof, if any). Notwithstanding the foregoing, on
and after the related Release Date (and any application otherwise required under
Section 6 of the Master Agreement has been made): the Lenders shall have no
rights to such Leased Property or any proceeds thereof; the Lenders shall have
no rights to direct or give consent to any actions with respect to such Leased
Property and the proceeds thereof; the Lessor shall have absolute discretion
(but in all events subject to the terms of the Operative Documents) with respect
to such exercise of remedies with respect to such Leased Property, and the
proceeds thereof, including, without limitation, any foreclosure or sale of such
Leased Property; and the Lessor shall have no liability to the Lenders with
respect to the Lessor's actions or failure to take any action with respect to
such Leased Property.
SECTION 5 LOAN EVENTS OF DEFAULT; REMEDIES
SECTION 5.1 Loan Events of Default. Each of the following events shall
constitute a Loan Event of Default (whether any such event shall be voluntary or
involuntary or come about or be effected by operation of law or pursuant to or
in compliance with any judgment, decree or order of any court or any order, rule
or regulation of any Governmental Authority) and each such Loan Event of Default
shall continue so long as, but only as long as, it shall not have been remedied:
(a) Lessor shall fail to distribute in accordance with
the provisions of Section 6 of the Master Agreement any amount received
by the Lessor pursuant to any of the Operative Documents within two (2)
Business Days of receipt thereof if and to the extent that the Agent or
the Lenders are entitled to such amount or a portion thereof; or
(b) the Lessor shall fail to pay to the Agent, within two
(2) Business Days of the Lessor's receipt thereof, any amount which a
Lessee or the Guarantor is required, pursuant to the Operative
Documents, to pay to the Agent but erroneously pays to the Lessor; or
(c) failure by the Lessor to perform in any material
respect any other covenant or condition herein or in any other
Operative Document to which the Lessor is a party, which failure shall
continue unremedied for thirty (30) days after receipt by the Lessor of
written notice thereof from the Agent or any Lender; or
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(d) any representation or warranty of the Lessor
contained in any Operative Document or in any certificate required to
be delivered thereunder shall prove to have been incorrect in a
material respect when made and shall not have been cured within thirty
(30) days of receipt by the Lessor of written notice thereof from the
Agent or any Lender; or
(e) the Lessor shall become bankrupt or make an
assignment for the benefit of creditors or consent to the appointment
of a trustee or receiver; or a trustee or a receiver shall be appointed
for the Lessor or for substantially all of its property without its
consent and shall not be dismissed or stayed within a period of ninety
(90) days; or bankruptcy, reorganization or insolvency proceedings
shall be instituted by or against the Lessor and, if instituted against
the Lessor, shall not be dismissed or stayed for a period of ninety
(90) days; or
(f) any Event of Default shall occur and be continuing.
SECTION 5.2 Remedies.
(a) Upon the occurrence of a Loan Event of Default hereunder, (i)
if such event is a Loan Event of Default specified in clause (e) of Section 5.1
with respect to the Lessor, automatically the Lenders' Commitments shall
terminate and the outstanding principal of, and accrued interest on, the Loans
shall be immediately due and payable, and (ii) if such event is any other Loan
Event of Default, upon written request of the Required Lenders, the Agent shall,
by notice of default to the Lessor, declare the Commitments of the Lenders to be
terminated forthwith and the outstanding principal of, and accrued interest on,
the Loans to be immediately due and payable, whereupon the Commitments of the
Lenders shall immediately terminate and the outstanding principal of, and
accrued interest on, the Loans shall become immediately due and payable.
(b) When a Loan Event of Default exists, the Agent may, and upon
the written instructions of the Required Lenders shall, exercise any or all of
the rights and powers and pursue any and all of the remedies available to it
hereunder, under the Notes, the Mortgages and the Assignments of Lease and Rents
and shall have and may exercise any and all rights and remedies available under
the Uniform Commercial Code or any provision of law. When a Loan Event of
Default exists, the Agent may, and upon the written instructions of the Required
Funding Parties shall, have the right to exercise all rights of the Lessor under
the Lease pursuant to the terms and in the manner provided for in the Mortgages
and the Assignments of Lease and Rents.
(c) Except as expressly provided above, no remedy under this
Section 5.2 is intended to be exclusive, but each shall be cumulative and in
addition to any other remedy provided under this Section 5.2 or under the other
Operative Documents or otherwise available at law or in equity. The exercise by
the Agent or any Lender of any one or more of such remedies shall not preclude
the simultaneous or later exercise of any other remedy or remedies. No express
or implied waiver by the Agent or any Lender of any Loan Event of Default shall
in any way be, or be construed to be, a waiver of any future or subsequent Loan
Event of Default. The failure or delay of the Agent or any Lender in exercising
any rights granted it hereunder upon any
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occurrence of any of the contingencies set forth herein shall not constitute a
waiver of any such right upon the continuation or recurrence of any such
contingencies or similar contingencies and any single or partial exercise of any
particular right by the Agent or any Lender shall not exhaust the same or
constitute a waiver of any other right provided herein.
SECTION 6 THE AGENT
SECTION 6.1 Appointment. Each Lender hereby irrevocably designates and
appoints the Agent as the agent of such Lender under this Loan Agreement and the
other Operative Documents, and each such Lender irrevocably authorizes the
Agent, in such capacity, to take such action on its behalf under the provisions
of this Loan Agreement and the other Operative Documents and to exercise such
powers and perform such duties as are expressly delegated to the Agent by the
terms of this Loan Agreement and the other Operative Documents, together with
such other powers as are reasonably incidental thereto. Notwithstanding any
provision to the contrary elsewhere in this Loan Agreement, the Agent shall not
have any duties or responsibilities, except those expressly set forth herein, or
any fiduciary relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Loan Agreement or any other Operative Document or otherwise exist against the
Agent.
SECTION 6.2 Delegation of Duties. The Agent may execute any of its
duties under this Loan Agreement and the other Operative Documents by or through
agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Agent shall not be
responsible for the negligence or misconduct of any agents or attorneys-in-fact
selected by it with reasonable care.
SECTION 6.3 Exculpatory Provisions. Neither the Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates shall be
(a) liable for any action lawfully taken or omitted to be taken by it or such
Person under or in connection with this Loan Agreement or any other Operative
Document (except for its or such Person's own gross negligence or willful
misconduct) or (b) responsible in any manner to any of the Lenders for any
recitals, statements, representations or warranties made by the Lessor or any
Lessee or any officer thereof contained in this Loan Agreement or any other
Operative Document or in any certificate, report, statement or other document
referred to or provided for in, or received by the Agent under or in connection
with, this Loan Agreement or any other Operative Document or for the value,
validity, effectiveness, genuineness, enforceability or sufficiency of this Loan
Agreement or any other Operative Document or for any failure of the Lessor or
any Lessee to perform its obligations hereunder or thereunder. The Agent shall
not be under any obligation to any Lender to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions
of, this Loan Agreement or any other Operative Document, or to inspect the
properties, books or records of the Lessor, the Guarantor or any Lessee.
SECTION 6.4 Reliance by Agent. The Agent shall be entitled to rely, and
shall be fully protected in relying, upon any Note, writing, resolution, notice,
consent, certificate, affidavit, letter, telecopy, telex or teletype message,
statement, order or other document or conversation believed by it to be genuine
and correct and to have been signed, sent or made by the proper
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Person or Persons and upon advice and statements of legal counsel (including,
without limitation, counsel to the Lessor or any Lessee), independent
accountants and other experts selected by the Agent. The Agent may deem and
treat each Lender as the owner of its pro rata share of the Loans for all
purposes unless a written notice of assignment, negotiation or transfer thereof
shall have been filed with the Agent. The Agent shall be fully justified in
failing or refusing to take any action under this Loan Agreement or any other
Operative Document unless it shall first receive such advice or concurrence of
the Required Lenders as it deems appropriate or it shall first be indemnified to
its satisfaction by the Funding Parties against any and all liability and
expense which may be incurred by it by reason of taking or continuing to take
any such action. Subject to the Operative Documents, the Agent shall in all
cases be fully protected in acting, or in refraining from acting, under this
Loan Agreement and the other Operative Documents in accordance with a request of
the Required Funding Parties, and such request and any action taken or failure
to act pursuant thereto shall be binding upon all the Lenders and all future
holders of an interest in the Note.
SECTION 6.5 Notice of Default. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Loan Potential Event of Default or
Loan Event of Default hereunder unless the Agent has received notice from a
Lender referring to this Loan Agreement, describing such Loan Potential Event of
Default or Loan Event of Default and stating that such notice is a "notice of
default". In the event that the Agent receives such a notice, the Agent shall
give notice thereof to the Lenders. The Agent shall take such action, subject to
the Operative Documents with respect to such Loan Potential Event of Default or
Loan Event of Default as shall be reasonably directed by the Required Funding
Parties; provided that unless and until the Agent shall have received such
directions, the Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Loan Potential Event of
Default or Loan Event of Default as it shall deem advisable in the best
interests of the Lenders.
SECTION 6.6 Non-Reliance on Agent and Other Lenders. Each Lender
expressly acknowledges that neither the Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact or Affiliates has made any
representations or warranties to it and that no act by the Agent hereinafter
taken, including any review of the affairs of the Lessor, the Guarantor or any
Lessee, shall be deemed to constitute any representation or warranty by the
Agent to any Lender. Each Lender represents to the Agent that it has,
independently and without reliance upon the Agent or any other Funding Party,
and based on such documents and information as it has deemed appropriate, made
its own appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of the Lessor, the Guarantor
and each Lessee and made its own decision to make its Loans hereunder and enter
into this Loan Agreement. Each Lender also represents that it will,
independently and without reliance upon the Agent or any other Funding Party,
and based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Loan Agreement and the other Operative
Documents, and to make such investigation as it deems necessary to inform itself
as to the business, operations, property, financial and other condition and
creditworthiness of the Lessor, the Guarantor and each Lessee. Except for
notices, reports and other documents expressly required to be furnished to the
Lenders by the Agent hereunder, the Agent shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, condition (financial or
otherwise), prospects or
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creditworthiness of the Lessor, the Guarantor or any Lessee which may come into
the possession of the Agent or any of its officers, directors, employees,
agents, attorneys-in-fact or Affiliates.
SECTION 6.7 Indemnification. The Lenders agree to indemnify the Agent
in its capacity as such (to the extent not reimbursed by a Lessee and without
limiting the obligation of any Lessee to do so), ratably according to the
percentage each Lender's Commitment bears to the total Commitments of all of the
Lenders on the date on which indemnification is sought under this Section 6.7
(or, if indemnification is sought after the date upon which the Lenders'
Commitments shall have terminated and the Loans shall have been paid in full,
ratably in accordance with the percentage that each Lender's Commitment bears to
the Commitments of all of the Lenders immediately prior to such date), from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind
whatsoever which may at any time (including, without limitation, at any time
following the payment of the Note) be imposed on, incurred by or asserted
against the Agent in any way relating to or arising out of, the Commitments,
this Loan Agreement, any of the other Operative Documents or any documents
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by the Agent under
or in connection with any of the foregoing; provided that no Lender shall be
liable for the payment of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting solely from the Agent's gross negligence or willful misconduct. The
agreements in this Section 6.7 shall survive the payment of the Note and all
other amounts payable hereunder.
SECTION 6.8 Agent in Its Individual Capacity. The Agent and its
Affiliates may make loans to, accept deposits from and generally engage in any
kind of business with the Lessor, the Guarantor or any Lessee as though the
Agent were not the Agent hereunder and under the other Operative Documents. With
respect to Loans made or renewed by it, the Agent shall have the same rights and
powers under this Loan Agreement and the other Operative Documents as any Lender
and may exercise the same as though it were not the Agent, and the terms
"Lender" and "Lenders" shall include the Agent in its individual capacity. Each
Lender acknowledges that the Lessor is an Affiliate of the Agent and that the
Agent in its individual capacity has had and continues to have other business
relations and transactions with ChoicePoint, ChoicePoint's Affiliates and the
Lessor.
SECTION 6.9 Successor Agent. The Agent may resign as Agent upon 20
days' notice to the Lenders effective upon the appointment of a successor agent.
If the Agent shall resign as Agent under this Loan Agreement and the other
Operative Documents, then the Required Lenders shall appoint a successor agent
for the Lenders, which successor agent shall be a commercial bank organized
under the laws of the United States of America or any State thereof or under the
laws of another country which is doing business in the United States of America
and having a combined capital, surplus and undivided profits of at least
$100,000,000, whereupon such successor agent shall succeed to the rights, powers
and duties of the Agent, and the term "Agent" shall mean such successor agent
effective upon such appointment and approval, and the former Agent's rights,
powers and duties as Agent shall be terminated, without any other or further act
or deed on the part of such former Agent or any of the parties to this Loan
Agreement or any holders of the Note. After any retiring Agent's resignation as
Agent, all of the provisions
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of this Section 6 shall inure to its benefit as to any actions taken or omitted
to be taken by it while it was Agent under this Loan Agreement and the other
Operative Documents.
SECTION 7 MISCELLANEOUS
SECTION 7.1 Documentary Conventions. The Documentary Conventions shall
apply to this Loan Agreement.
SECTION 7.2 No Waiver; Cumulative Remedies. No failure to exercise and
no delay in exercising, on the part of the Agent or any Lender, any right,
remedy, power or privilege hereunder, shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, remedy, power or privilege
hereunder preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege. The rights, remedies, powers and
privileges herein provided are cumulative and not exclusive of any rights,
remedies, powers and privileges provided by law.
SECTION 7.3 Successors and Assigns. This Loan Agreement shall be
binding upon and inure to the benefit of the Lessor, the Agent, the Lenders, all
future holders of an interest in the Note and their respective successors and
permitted assigns.
SECTION 7.4 Survival and Termination of Agreement. All covenants,
agreements, representations and warranties made herein and in any certificate,
document or statement delivered pursuant hereto or in connection herewith shall
survive the execution and delivery of this Loan Agreement, and the Note and
shall continue in full force and effect so long as the Note or any amount
payable to any Lender under or in connection with this Loan Agreement or the
Note is unpaid, at which time this Loan Agreement shall terminate.
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IN WITNESS THEREOF, the parties hereto have caused this Loan Agreement
to be duly executed and delivered by their proper and duly authorized officers
as of the day and year first above written.
SUNTRUST BANK, as Agent
By: /s/ Daniel S. Komitor
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Name: Daniel S. Komitor
Title: Director
Loan Agreement
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SUNTRUST EQUITY FUNDING, LLC,
as Lessor and Borrower
By: /s/ R. Todd Shutley
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Name: R. Todd Shutley
Title: Senior Vice President and Manager
Loan Agreement
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FLEET NATIONAL BANK,
as a Lender
By: /s/ John B. Desmond
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Name: John B. Desmond
Title: Director
Loan Agreement
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BNP PARIBAS,
as a Lender
By: /s/ Angela Arnold
----------------------------------------
Name: Angela Arnold
Title: Vice President
By: /s/ Craig Pierce
----------------------------------------
Name: Craig Pierce
Title: Associate
Loan Agreement
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